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Electoral College Wins a Victory in Federal Court

By Steve Byas

Texas, like 47 other states, uses a winner-take-all system in awarding all of its Electoral College votes. That process is constitutional, the Fifth Circuit Court of Appeals said in its decision in a case announced on Wednesday.

The League of United Latin American Citizens (LULAC) had filed lawsuits across the country, arguing that the present system used in 48 states is unconstitutional, as it violates the concept of one-person, one-vote. But the three judges in the Fi Circuit disagreed with the plaintiffs' reasoning, which they described as “flawed.”

Judge Jerry Smith wrote, “Democratic elections necessarily result in winners and losers. The frustration of losing, however, does not violate the Constitution.” Smith was appointed by President Ronald Reagan, as was Judge W. Eugene Davis, but the third member of the appellate court that made a unanimous ruling, Judge Carl E. Stewart, was tapped by President Bill Clinton.

The Constitution, in Article II, gives plenary, or full, power to each state’s legislature to determine the method in how their presidential electors are selected. “Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors equal to the whole number of senators and representatives to which the state may be entitled in the Congress,” reads Article II, Section 1 of the Constitution.

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Court: Electoral College Members Not Bound By Popular Vote

A U.S. appeals court in Denver said Electoral College members can vote for the presidential candidate of their choice and aren’t bound by the popular vote in their states. The 10th U.S. Circuit Court of Appeals ruled Tuesday that the Colorado secretary of state violated the Constitution in 2016 when he removed an elector and nullified his vote because the elector refused to cast his ballot for Democrat Hillary Clinton, who won the popular vote.

The ruling applies only to Colorado and five other states in the 10th Circuit: Kansas, New Mexico, Oklahoma, Utah and Wyoming.

It could influence future cases nationwide in the unlikely event that enough Electoral College members strayed from their states’ popular vote to affect the outcome of a presidential election, constitutional scholars said.

RELATED: Thousands Of Signatures Collected In Effort To Repeal National Popular Vote Law

The Electoral College system is established in the Constitution. When voters cast a ballot for president, they are actually choosing members of the Electoral College, called electors, who are pledged to that presidential candidate. The electors then choose the president.

Electors almost always vote for the popular vote winner, and some states have laws requiring them to do so.

But the split decision by a three-judge panel on the Denver appeals court said the Constitution allows electors to cast their votes at their own discretion. “The state does not possess countervailing authority to remove an elector and to cancel his vote in response to the exercise of that Constitutional right,” the ruling said.

The elector at the center of the case, Micheal Baca, was part of a group known as “Hamilton electors” who tried to convince electors who were pledged to Clinton or Donald Trump to unite behind a consensus candidate to deny Trump the presidency.

After a flurry of filings in state and federal courts, the electors met on Dec. 19, 2016, and Baca crossed out Clinton’s name on his ballot and wrote in John Kasich, the Republican governor of Ohio who also ran for president.

Then-Secretary of State Wayne Williams refused to count the vote and removed Baca as an elector. He replaced him with another elector who voted for Clinton.

Colorado’s current secretary of state, Jena Griswold, decried the ruling Tuesday in Colorado but did not immediately say if she would appeal.

“This court decision takes power from Colorado voters and sets a dangerous precedent,” she said. “Our nation stands on the principle of one person, one vote.”

Baca’s attorneys said the U.S. Supreme Court will likely hear the case because it conflicts with a decision from Washington state’s Supreme Court. That court said in May that electors could be fined for not casting ballots for the popular vote winner.

Constitutional scholars were skeptical, saying a conflicting opinion from a state court system has less influence on the Supreme Court than one from another federal appeals court. No other federal appeals court is believed to have ruled in a similar case.

“The court just might think this isn’t something that demands our attention right now,” said Michael Morley, a professor at the Florida State University College of Law.

The court ruling in Denver could be important if a future Electoral College is so closely divided that a handful of “faithless electors” change the outcome by casting a ballot contrary to the popular vote, said Ned Foley, a professor at Ohio State University’s law school.

“This opinion would be taken very seriously,” he said. “It would be considered judicial precedent.”

But that kind of split in the Electoral College is unlikely, said Morley.

“So many individually unlikely events would have to fall in place for that,” he said.

Hundreds of electors have cast votes in the history of the nation, “and only a handful have been cast by faithless electors,” Morley said.

It wasn’t immediately clear what impact the ruling would have on a new Colorado law that pledges the state’s Electoral College votes to the winner of the national popular vote if enough other states with a total of at least 270 electoral votes do the same.

It would ensure the winner of the popular vote wins the Electoral College and becomes president.

Tuesday’s ruling could undermine the law by prohibiting the state from requiring electors to vote for the popular vote winner, said Frank McNulty, an adviser to Protect Colorado’s Vote, which wants voters to overturn the law. But the ruling could also free electors to decide on their own to support the candidate with the most votes nationally, he said.

“It is a double-edge decision,” he said.



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The Electoral College Is Still The Best Way To Elect A President

Editor's Note: The primary reason we need the Electoral College is ensure each state has a equal say in decided who is going to represent them as President.  It is imperative that to a huge state like California or New York be prevented from deciding the outcome of every single presidential election.  Those two states do not represent the views and values of every other state.  For example, if the popular vote were used in the 2016 election California alone would have decided the fate of the entire country.  Each state choses who will represent them in Congress and each state must have the right to decide who will represent them as President.



By Randy Blaser

I see there is some squawking about abolishing the Electoral College in favor of direct election of the president by a majority of voters in light of the results of the 2016 election.

While on her book tour, Hillary Clinton, the Democratic nominee for president in 2016, who won a majority of the popular vote but lost in the Electoral College, said the peculiar institution should be abolished.

Some local newspapers agreed, calling it an outmoded method of election that really isn't fair.

I suppose when you fail to gain the presidency because of this odd institution even though you won the most votes, you're bound to want to change it. Clinton thought the same thing when Al Gore was denied the presidency in 2000, even though he won the popular vote.

And if you supported Clinton and Gore in those two elections, or if your guy was Andrew Jackson in 1824, or Sam Tilden in 1876, or Grover Cleveland in 1888, who all lost the presidency despite winning a popular vote majority, then you might want to abolish it, too.

But one shouldn't be swayed by the passions of the supporters of the losing candidate, which is something the great Alexander Hamilton feared in coming up with the Electoral College. And as we all know, Hamilton is so much in favor today he has his own musical. Could he be wrong?

Unlike those who wish to abolish it, I think that in today's America, the Electoral College is the only way to make an election for president fair.

One danger of direct election of the president by the popular vote is what James Madison called the tyranny of the majority. The founders were so concerned about this concept of the tyranny of the majority, they created a Constitution full of checks and balances.

And it's a good thing they did. I know it is counter-intuitive. We love the phrase majority rule. But if you think about it, there are all sorts of instances where the majority has been stopped.

Not long ago, the majority in California voted to outlaw same-sex marriage. And more than likely, a majority of Americans would also vote to outlaw it. Yet the tyranny of the majority on this issue has been checked by the courts.

There is no such thing as a national election for president, is there? To run for president, a candidate has to successfully get on the ballot in all 50 states. Elections are conducted by the states. How can you devise a system where a union of the states elect the only person who represents all Americans?

The answer was, and still is, the Electoral College, which fills that role neatly for a republic, which is what we have, not a democracy. A candidate must win a majority total in a majority of the states, which keeps one region having too great an influence over the rest of the country.

Finally, there is the recent issue of the alleged Russian tampering with the 2016 election. I know some of my more liberal friends believe Russia rigged the 2016 results, but think about it. Putin must be some sort of evil genius to figure out how to come up with just the right results in just the right states to give Trump the victory in an election where Clinton gains a majority of popular votes by 3 million.

Tougher than solving a Rubik's cube, if you ask me.

The Electoral College makes rigging an election impossible. A president is elected by 50 state elections all with different rules and different methods for voting and different timetables. Rigging 50 elections to get the outcome you want is impossible. Even a brainiac like Clinton couldn't figure it out.

Yes, the Electoral College is an antiquated idea. But maybe the founders were wiser than they knew. Wiser than we know.

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